Aileen McHarg is Professor of Public Law and Human Rights at Durham Law School
The problem of accretion of ministerial powers at the expense of Parliament that Lord Judge describes is not a new one. If it became worse as a consequence of Brexit and the pandemic, the issue is one of scale rather than the nature of the constitutional questions that arise. Nevertheless, there is a new constitutional dimension here: the increasing acquisition of powers for UK ministers to make delegated legislation in areas of devolved competence, including Henry VIII powers, and even powers to adjust the limits of devolved competence. In other words, we are also seeing the accretion of UK ministerial powers at the expense of devolved ministers and the devolved legislatures.
The practice of conferring delegated legislative powers on UK ministers in devolved areas was rare pre-Brexit. On the whole, such powers were transferred to the devolved governments; the main exception being the concurrent power to implement EU law under s.2(2) of the European Communities Act 1972 (ECA). However, the practice has accelerated beginning with the European Union (Withdrawal) Act 2018 (EUWA), initially extending to other Brexit-related legislation (including EU Exit statutory instruments), and now increasingly spilling over into other areas of devolved competence previously unaffected by EU law (for instance, a power to make “planning data regulations” in the Levelling Up and Regeneration Bill).
These new ministerial powers give rise to three main problems.
First, unlike the implementation power in s.2(2) ECA, they enable UK ministers to make substantive policy choices in devolved areas which may not have support in the devolved territories. UK delegated legislation affecting devolved matters, unlike primary legislation, is not subject to the Sewel Convention, and while some of these powers are subject to statutory “consent requirements”, giving the devolved governments a say in how they are exercised, legislative practice in this regard is patchy. Devolved ministers very rarely have an absolute veto; often they merely have to be consulted; and sometimes they have no involvement at all. For example, the Retained EU Law (Revocation and Reform) Bill is a highly politically contentious Bill which empowers UK ministers to legislate in devolved areas without the consent of, or even a duty to consult, devolved ministers. Similarly, under clause 42 of the Genetic Technology (Precision Breeding) Bill – the policy of which the Scottish and Welsh Governments have also rejected – UK ministers nevertheless have powers to make supplementary, incidental or consequential regulations, including regulations amending primary legislation, throughout the UK, with no obligation even to consult the devolved governments.
Secondly, where delegated legislation in devolved areas is made by UK rather than devolved ministers, it is very difficult for the devolved legislatures to exercise meaningful scrutiny or control. Any scrutiny role is dependent upon the extent to which the consent of devolved ministers is required, so once again it is patchy. But there are additional difficulties with the time available for scrutiny and no mechanism for feeding the views of the devolved legislatures into processes for considering delegated legislation at Westminster.
Thirdly, where UK ministers have powers which affect the scope of devolved competences (de jure or de facto, by affecting the effectiveness of devolved legislation) – such as the now repealed “freezing” power in s.12 of the EUWA, or powers under the United Kingdom Internal Market Act 2020 to alter exclusions from the market access principles – these effectively enable ministers to effect constitutional change. Not only is this objectionable in principle, but it also bypasses the statutory and conventional mechanisms for ensuring that changes to devolved competences take place in a consensual manner.
The increasingly routine acquisition of UK ministerial powers in devolved areas is a major current source of tension between the UK and devolved governments – and a key reason for the ever more frequent refusal of devolved consent to UK legislation. The devolved institutions rightly see it as incompatible with the aims of devolution, namely to allow local democratic control of and accountability for policy-making in devolved areas. Indeed, Holyrood’s Constitution, Europe, External Affairs and Culture Committee has said that, as a consequence of these new powers, more secondary legislation within the Scottish Parliament’s competence may be made in London than in Edinburgh.
There may of course be circumstances in which UK-wide delegated legislation in devolved areas is justified, just as UK-wide primary legislation is sometimes justified. But the rationale for delegated powers needs to be particularly strong, given the different constitutional positions of UK ministers and the UK Parliament, and the doubly-attenuated nature of democratic scrutiny that they entail.
This, then, is a constitutional problem that requires a systematic solution, not ad hoc negotiation over particular delegated powers. Although the Scottish and Welsh Parliaments have commendably sought to secure a scrutiny role for themselves as far as possible, it is not a problem that can be resolved by the devolved institutions alone. Indeed, the attempt by the Scottish Parliament to superimpose a consent requirement on the exercise of UK ministerial powers under the EUWA was struck down by the Supreme Court in the Continuity Bill Reference as involving an unlawful modification of the UK Parliament’s unconditional power to legislate for Scotland – a mischaracterisation of the problem if ever there was one.
Of course, as with the control of delegated legislation in general, parliamentary sovereignty is a barrier to implementing any systematic or mandatory constitutional solution. Nevertheless, finding a solution has to begin with the recognition that a constitutional problem exists.